Naive school to write second declaration

[DecentDad]

Soc,

Met today with the principal and teacher.  No good excuses for why they didn't contact me about teacher's conversation with child, but I got apologies.  They say in retrospect, they should have told me.  Duh.

I gave them a brief education as to the protracted background of our litigation and biomom's repeated attempts to move-away or get sole.

They claim they didn't know biomom was going to use the teacher's statement for going to court  (stupid, but they admitted being naive to this).

They claim that the school never takes a side in child custody, they only document what they witness (again, naive).

I read out of the actual hearing transcript and biomom's declaration as to how teacher's position was portrayed.  They were surprised-- again, naive.

Principal indicated that they're willing to write a second declaration as to put the first into context (i.e., a one-time incident with no observation of child ever before or after being uncomfortable in my care).  We'll see how good it is.

1.  If teacher writes and basically neutralizes the first declaration as being an isolated incident, you think I'm golden on my response?

2.  If teacher writes a declaration to clarify, which essentially means that biomom and her attorney made up the rest (about teacher's position), grounds to move for sanctions?

3.  Biomom showed up at my temple during my spring break, when judge specifically told her she could only have a 2 hour dinner with child.  Biomom stayed in the Sunday school class for 3 hours, refusing to leave the child.  Relevant to mention? (e.g., showing that she's now stalking me without asking or warning, showing up at activities I plan, and thumbing her nose at this new judge re spring break)?

[socrateaser]

>1.  If teacher writes and basically neutralizes the first
>declaration as being an isolated incident, you think I'm
>golden on my response?

Depends on what it says. You just stated that the school's policy is to "document what they witness." Well, if the teacher witnessed the child saying the things she did, then she was observing the school's policy, and now her testimony is admissible under the business exception rule. So, maybe you shouldn't have visited the school at all.

On the other hand, if the 2nd declaration just says that this was a harmless incident in the view of the teacher and there has been no other comments by the child before or since indictating any discomfort with the father -- andd, even better that the child always runs to meet daddy after school and gives him a big hug, etc., then that could be real positive.

>2.  If teacher writes a declaration to clarify, which
>essentially means that biomom and her attorney made up the
>rest (about teacher's position), grounds to move for
>sanctions?

You don't know what the teacher will write, unless you intend to offer her a prepared statement to subscribe to (which is legal and done all the time, however, it not something I particularly admire about the legal profession). But, if the teacher's testimony does in fact state unequivocally that the attorney suggested things that were not actually observed and that the teacher signed the statement under some duress, then that would be grounds for suing the attorney and your ex in civil court for abuse of process and fraud, and for filing a complaint with the State Bar, which if proven true, would probably cause the attorney's disbarrment. Manufacturing testimony is a big deal.

So, don't you follow that lead if you can help it.

>
>3.  Biomom showed up at my temple during my spring break, when
>judge specifically told her she could only have a 2 hour
>dinner with child.  Biomom stayed in the Sunday school class
>for 3 hours, refusing to leave the child.  Relevant to
>mention? (e.g., showing that she's now stalking me without
>asking or warning, showing up at activities I plan, and
>thumbing her nose at this new judge re spring break)?

Question is was her presence harrassing? Is the shule teacher prepared to testify that the mother's presence was a negative distraction or something else derogatory? If not, it's irrelevant.

Take the high road.

[DecentDad]

Ok.  More info.  Recall that this declaration is the kingpin of the whole case... around which everything else is spun.

The declaration was written at the request of the mother, starting, "To Whom It May Concern" and ending" I don't mean to be judgmental, but I was requested to provide this document."  So, no duress involved.

According to today's meeting, the teacher was advised by the principal to write down notes at time of the incident.  Declaration made no mention of referring to such notes.  Declaration itself is not a business record, but perhaps it reports on what is contained elsewhere in a business record.

Teacher said she went to the principal on the day this happened (and documented it) MAINLY because it was so out of character for the child (i.e., isolated occurrence) to be so upset about my home.

She said child initially claimed to have been crying all night in mother's home (conveniently not mentioned in the declaration), and then child said she didn't want to go to my home for the reason of monster fears and me not believing her.

Teacher acknowledged that she conferred with the teacher's aide (who signed out child to me that day), and the TA said child was happy/fine leaving with me.

At hearing, attorney claimed teacher has observed the physical illnesses caused by stress.  Mother declared that teacher choreographed a false homework assignment, just so child could take home a teddy bear.  Neither is true, according to teacher.

I also found out today that mother volunteers in class right before I pick up child on Fridays and right after I drop off child on Mondays.

So, there's no telling what pressures this child is under right before my pick-up, and right after my drop-off.

Principal supported the idea of a therapist for child (i.e., as I'm going to ask the court), but they won't take a position on it.

1. Knowing that we're talking about an isolated incident (alleged fears of closet monsters at dad's house which dad allegedly doesn't address) with no allegations of sexual or physical abuse; and if teacher puts greater perspective on the whole matter... still think it's anyone's game in court?

2.  Does teacher need to unequivocably denounce the false statements?  It's sounding like school will write something more like, "Child has always appeared comfortable with dad, even the day of the incident.  Child doesn't appear distressed after time with dad.  This was an isolated conversation."

[socrateaser]

>1. Knowing that we're talking about an isolated incident
>(alleged fears of closet monsters at dad's house which dad
>allegedly doesn't address) with no allegations of sexual or
>physical abuse; and if teacher puts greater perspective on the
>whole matter... still think it's anyone's game in court?

A declaration is not the place to "put greater perspective on the whole matter," because there's no opportunity to cross examine or expand on the declaration. You want to nail specific points that directly countradict the mother's allegations in her declaration or in the prior declaration of the teacher. If you have a transcript of the prior hearing you can try to directly countradict specific statements in the testimony, too.

But, don't go looking for some general overview. You want a short declaration that's on point, because the judge will not read more than a couple of pages before he/she gets bored or loses focus.

>2.  Does teacher need to unequivocably denounce the false
>statements?  It's sounding like school will write something
>more like, "Child has always appeared comfortable with dad,
>even the day of the incident.  Child doesn't appear distressed
>after time with dad.  This was an isolated conversation."

I suggest that you offer to prepare a declaration with the points that they wish to stress. If you allow them to say whatever they wish, you may end up with something that says only half of what you want, and the other half may end up putting you back where you started.

This whole thing is dicey. I'm right on the edge of suggesting that you let them write whatever they wish, and as soon as you have it, that you subpoena them to testify at the motion hearing, which is highly irregular, but if the teacher is there, then the judge would probably allow it.

I don't want this to blow up in your face, because you could be accused of trying to spoil/manipulate the teacher's testimony, and that could make whatever she says suspect unless she's in the courtroom.

[notnew]

Soc & DD,

Just curious, but I am in the middle of modification of custody. Child absent from school in excess, etc. I met with the school guidance counselor and truant officer. At emergency hearing, presented letter from the guidance counselor based on her contact with BM. Was told by Judge that the letter may not be considered by the court becuase it could easily be forged. Judge instructed me to supbonea (sp.?) these two in for next hearing, which I did.

Would it be to DD advantadge to bring these two into court and have their testimony in open court?  I cannot believe the school's legal dept is allowing them to proceed in this manner. Highly unusual in my experience.

Just a thought.

[socrateaser]

>Would it be to DD advantadge to bring these two into court and
>have their testimony in open court?  I cannot believe the
>school's legal dept is allowing them to proceed in this
>manner. Highly unusual in my experience.

This is not a "letter." It's a declaration sworn to under penalty of perjury, so it can be considered at a preliminary hearing, even though it's hearsay at trial unless the author is present.

However, you have reminded me of just that. I keep thinking that the document is a business record, but it's not. As a declaration, the court can consider it without regard for its hearsay inadmissibility, until trial, so the advice I gave DD eariler is not entirely correct, and he should not object to the document as hearsay in expectation of it being argued as an exception under the business records rule.

DD must argue that the declaration is far more prejudicial than probative, without an opportunity to cross examine the declarant, because the rest of the mother's allegations are simply repeats of prior denied motions and this single new document should not be given any weight until the teacher can be cross examined.

DD should use whatever other evidence he has to try to impeach this testimony as not credible. If he gets another declaration from the teacher that discounts the value of the first declaration, then that would likely do the job.

[DecentDad]

Thanks.  I've already been building the prejudical vs probative argument... can you review and critique (I'm going to edit and remove these arguments once you reply)?

------------------------------------
(edited)

----------------------------

As to other evidence, I have a new declaration from an experienced family psychiatrist who's known me for 5 years, saying I'm a great father who's sensitive to my child.  I have a father-in-law who saw happy, calm child in my home last week over spring break; including bedtimes.  Other family members can write (i.e., tough to have objective witnesses about my home, given that I don't invite strangers into my home).  I have 2004 depo testimony to show mother's long-standing hatred of me, mother's 2005 declaration where she admits she doesn't even call child, reference to 730 evaluator's conclusion of biomom's psych test results (abnormally paranoid).  I can put together a couple pages of photographs, showing a dozen incidents of child genuinely smiling with me and my wife (not much as evidence, but I'd ask biomom to explain them?).  I mean, what else can I do?  I have no declarations about biomom being a nut, as she's well-behaved until there are no witnesses (and I never stalked her or hired a PI to track down other people who she's royally peeved).



1.  If I don't get a second declaration from the school, do you think the above accomplishes my goal with regards to the first one?

2.  You keep talking about "preliminary" and "trial" with regard to admissibility.  I've already had a 2004 trial (ending in settlement), and we've got a final judgment.  I don't understand the language you're using.  Clarify?

3.  I've done well at defeating all the past allegations.  But, I have a new judge who hasn't been listening to it for 2-3 years (as prior one did).  At face value, the allegations look serious.  Wouldn't I want to put just as much effort defeating the past things, in case the new judge accepts them as truth?  An ethical attorney wouldn't have argued it in the first place, so I'm concerned about just saying, "As to pages 1 - 9 of Petitioner's declaration, she raised it all in late 2005 and was denied her OSC then too."

4.  What about the "other" evidence?

Thanks,
DD

[socrateaser]

See HACKded comments (****)...PS. I'm out of town Thurs-Fri, so don't bother responding to this, because I probably won't get to see it before your response is due in court.

>Thanks.  I've already been building the prejudical vs
>probative argument... can you review and critique (I'm going
>to edit and remove these arguments once you reply)?
>
>------------------------------------
>The Declaration of TEACHER is based on hearsay allegedly made
>by a six year old child.  I object to it as being ****substantially more
>prejudicial than probative for reasons I shall outline.

****This is how I'd do it:

Petitioner is attempting to argue that I am caloulousy denying our child security items and a general sense safety when she is in my home. This allegation is frivolous and not deserving of the court's valuable time.

I have an email correspondence from ??/??/???, wherein I asked Petitioner if she would send CHILD'S security items along, and Petitioner indicated that it was up to CHILD to make the determination. Based on this correspondence, I'm wondering why Petitioner now views this issue as a danger to CHILD, when it apparently was not previously.

But, assuming that this issue is now actually something demanding the court's attention, then the court is about to make a decision based upon a single declaration containing hearsay from a six year old child, where the declarant, TEACHER is not available for cross examination, first because this is a motion hearing where third party testimony is generally not permitted, and second, because Petitioner has managed to arrange this OSC hearing during a period when school is not in session and I could not reach TEACHER or SCHOOL to subpeona her appearance even if her testimony were permitted.

Furthermore, Petitioner's entire declaration is a near copy of the allegations presented to the court on ??/??/????, and which was summarily denied as not satisfying her burden of proof. (create a cross reference between the two documents and offer it to the court, both live and in your responsive pleading).

Thus, with the exception of this single declaration by TEACHER, everything in Petitioner's pleading was already determined as insufficient by the court, and the only evidence to tip the scale in favor of Petitioner is the hearsay testimony of a witness who I cannot cross examine.

The court should permit me an opportunity to question this witness on the record prior to any further action, or in the alternative, the court should order the child evaluated by a professional therapist to determine if there is any truth to the allegations of emotional distress, before making any modification to the current parenting plan. To do otherwise, is to permit Petitioner to use this very thin declaration to prejudice the court, when in fact, no action whatsoever may be required -- just as it was not required in Petitioner's prior actions on this issue.

>
>TEACHER is not present in court to testify.  Petitioner has
>eliminated opportunity for cross-examination.  There are
>simply too many "unknowns" surrounding this declaration which,
>even at face value, speaks to a single alleged conversation in
>a single moment of time.
>
>TEACHER is not a child psychologist, social study
>investigator, or law enforcement investigator.  TEACHER has no
>graduate degree.  TEACHER may have no education into
>alienation tactics some child custody litigants employ, by
>pressuring children to make false statements.
>
>TEACHER is a private school teacher.  She is not a public
>employee acting in the state's or county's interest.
>
>TEACHER does not speak to the typical emotional state of CHILD
>upon returning from my home, which I know is always positive.
>
>TEACHER provides no long-term observation as to the child's
>comfort in my presence.  TEACHER failed to mention that child
>happily and willingly left with me on the day this
>conversation allegedly took place.
>
>TEACHER did not indicate whether CHILD was telling the truth
>or not, a common question of competence when dealing with
>testimony of young children.  TEACHER doesn't even specify if
>she discussed "telling the truth" with CHILD.
>
>TEACHER did not indicate if CHILD has ever shared any negative
>words about Petitioner's home.
>
>Petitioner volunteers in class on the days when I pick up
>CHILD from school and on days when I return CHILD to school.
>TEACHER does not address any aspect of Petitioner's presence
>while CHILD made the alleged statements.
>
>TEACHER does not mention how much of the child custody
>litigation Petitioner has discussed with her.  TEACHER has
>informed me that Petitioner has frequently asked if CHILD was
>upset after being in my home.
>
>Petitioner is the class "Room Mother."  She has had frequent
>contact with TEACHER for 8 months.  As shown by evidence,
>Petitioner has influence on TEACHER'S class curriculum, as
>shown by Exhibit XX, a true and correct copy of a notice the
>school sent home to parents.  In the notice, the principal
>instructs parents to contact Petitioner with any questions
>about a new classroom activity occurring in kindergarten.
>Petitioner and TEACHER have a relationship.
>
>TEACHER does not speak to any pattern of CHILD's words or
>emotion, as there is no mention of any other prior incidents.
>One may reasonably conclude that Petitioner asked TEACHER to
>include all past events too, just as TEACHER declared that
>Petitioner asked her to write this.  There are no prior
>incidents.
>
>TEACHER didn't call any authorities.
>
>Most telling, TEACHER didn't even refer CHILD to the school
>psychologist.
>
>Petitioner is asking the court to rely SOLELY on this
>declaration of TEACHER.  The court is informed that TEACHER
>took no action stemming from this incident (i.e., other than
>to write a declaration AFTER Petitioner requested one, per
>TEACHER's statement).  This court would be wrong to take any
>action to change custody arrangements, given that the sole
>witness had the authority to help child (e.g., referral to
>school psychologist or report to authorities), but she was not
>concerned enough to believe ANY intervention is warranted.
>
>Even without cross-examination, this court can evidently see
>that TEACHER's own actions do not support Petitioner's
>theories.
>
>Finally, TEACHER's intent is clear when she writes, "I do not
>mean to be judgmental.  I was asked to document this
>conversation."  
>
>TEACHER could have easily left out that sentence, but she
>evidently wanted to conclude with a particular emphasis made
>to the reader.

****You need to shorten all that stuff WAY up and just mention that Petitioner has laid no foundation for the teacher having any expertise with regard to child psychology matters, and that the declaration reads in an clearly contrived manner, i.e., "I was asked to record the child's statements," as if to suggest that this is a "business record exception to the hearsay rule," and that it was done as some sort of routine function of the teacher's duties, i.e., that she was just sitting around taking notes of what the child happened to say.

There isn't even any statement that her recording of the child's statements were contemporaneous. It all reads like a stage play, which is quite possible, as Petitioner is a teaching assistant at the school and has considerable time to interact with and convince the teacher to record the child's remarks exactly as Petitioner would like them reported to the court.

And so on and so forth.
>
>----------------------------
>
>As to other evidence, I have a new declaration from an
>experienced family psychiatrist who's known me for 5 years,
>saying I'm a great father who's sensitive to my child.

****Good.


 >I have
>a father-in-law who saw happy, calm child in my home last week
>over spring break; including bedtimes.  

****Good.

>Other family members
>can write (i.e., tough to have objective witnesses about my
>home, given that I don't invite strangers into my home).  

>I have 2004 depo testimony to show mother's long-standing hatred
>of me, mother's 2005 declaration where she admits she doesn't
>even call child, reference to 730 evaluator's conclusion of
>biomom's psych test results (abnormally paranoid).  

****Good

>I can put together a couple pages of photographs, showing a dozen
>incidents of child genuinely smiling with me and my wife (not
>much as evidence, but I'd ask biomom to explain them?).  

****Worth bringing along and mentioning.
>I
>mean, what else can I do?  I have no declarations about biomom
>being a nut, as she's well-behaved until there are no
>witnesses (and I never stalked her or hired a PI to track down
>other people who she's royally peeved).

****Of course she is. She's an actress.

>
>1.  If I don't get a second declaration from the school, do
>you think the above accomplishes my goal with regards to the
>first one?

All you can do is take your shot. You shouldn't be trying to foreclose any further action, because that makes you seem unconcerned with the child. I would push for the therapist and no parenting changes until a report is returned on the child's mental state. If there wasn't irreparable harm the other day when the trouble was fresh, then why should the court be moved to reduce Respondent's parenting time two weeks later, without any futher proof of problems from the child? You should emphasize this, because hell, if I were sitting there as judge, I'd be wondering why I'm more concerned two weeks later than two weeks earlier.

>
>2.  You keep talking about "preliminary" and "trial" with
>regard to admissibility.  I've already had a 2004 trial
>(ending in settlement), and we've got a final judgment.  I
>don't understand the language you're using.  Clarify?

The evidence rules are only applicable to trial on the merits, before final judgment. At any pretrial action, the court can admit hearsay evidence, even though it would be inadmissible at trial, because the orders are "temporary." Of course, in ordinary civil actions, such temporary orders don't have a substantive effect on the case. Whereas in family law, a temporary order may alter the status quo and the result is that a substantive decision with a permanent effect is made by the court without a hearing on the merits, and thus the adverse party is denied procedural due process.

But, no one's ever challenged this little artifact of family law, so I wouldn't start thinking about it now.

>3.  I've done well at defeating all the past allegations.
>But, I have a new judge who hasn't been listening to it for
>2-3 years (as prior one did).  At face value, the allegations
>look serious.  Wouldn't I want to put just as much effort
>defeating the past things, in case the new judge accepts them
>as truth?  An ethical attorney wouldn't have argued it in the
>first place, so I'm concerned about just saying, "As to pages
>1 - 9 of Petitioner's declaration, she raised it all in late
>2005 and was denied her OSC then too."

An ethical attorney? That's like jumbo shrimp, or genuine imitation, right? Kidding, all you ethical attorneys out there in cyberspace who may be reading this.

>
>4.  What about the "other" evidence?

See above.

[DecentDad]

I'm all filed and done.

Principal ended up writing me a letter with decision to "remain neutral" in this matter, as to do otherwise would harm their ability to focus on child.  So, they're absolving themselves of the mess they created by initially choosing to write an affadavit at the request of the mother.

Of course, hopefully this means that this school will stay out of it for the next many years after having learned a lesson about biomom's manipulation (unless they're conspiring with biomom, which I should find out soon enough at the hearing).

Thanks for all your help.